Opinion
2014-05-2
The PEOPLE of the State of New York, Respondent, v. Gunner NORTHRUP, Defendant–Appellant.
David J. Pajak, Alden, for Defendant–Appellant. Donald G. O'Geen, District Attorney, Warsaw (Marshall A. Kelly of Counsel), for Respondent.
David J. Pajak, Alden, for Defendant–Appellant. Donald G. O'Geen, District Attorney, Warsaw (Marshall A. Kelly of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, VALENTINO, and WHALEN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of robbery in the second degree (Penal Law § 160.10[1] ). We conclude that defendant's waiver of the right to appeal is valid ( see generally People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645;People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145), and that it encompasses his challenge to the amount of restitution ordered because “the exact amount of restitution was included in the plea agreement” ( People v. Thomas, 77 A.D.3d 1325, 1326, 908 N.Y.S.2d 284,lv. denied16 N.Y.3d 800, 919 N.Y.S.2d 517, 944 N.E.2d 1157;see People v. Gordon, 43 A.D.3d 1330, 1331, 841 N.Y.S.2d 811,lv. denied9 N.Y.3d 1006, 850 N.Y.S.2d 394, 880 N.E.2d 880). In any event, defendant failed to preserve for our review his challenge to the amount of restitution inasmuch as he did not object to that amount at either the plea proceeding or at the time of sentencing, and he did not request a hearing on that issue ( see People v. McCarthy, 83 A.D.3d 1533, 1534, 921 N.Y.S.2d 755,lv. denied17 N.Y.3d 819, 929 N.Y.S.2d 808, 954 N.E.2d 99;People v. Sweeney, 79 A.D.3d 1789, 1789, 915 N.Y.S.2d 775,lv. denied16 N.Y.3d 900, 926 N.Y.S.2d 35, 949 N.E.2d 983;see also People v. Horne, 97 N.Y.2d 404, 414 n. 3, 740 N.Y.S.2d 675, 767 N.E.2d 132).
The appeal waiver, however, does not encompass defendant's contention concerning the denial of his request for youthful offender status inasmuch as “[n]o mention of youthful offender status was made before defendant waived his right to appeal during the plea colloquy” ( People v. Anderson, 90 A.D.3d 1475, 1476, 935 N.Y.S.2d 237,lv. denied18 N.Y.3d 991, 945 N.Y.S.2d 646, 968 N.E.2d 1002;see People v. Jones, 107 A.D.3d 1611, 1611, 966 N.Y.S.2d 734,lv. denied21 N.Y.3d 1043, 972 N.Y.S.2d 540, 995 N.E.2d 856,reconsideration denied22 N.Y.3d 956, 977 N.Y.S.2d 187, 999 N.E.2d 552). In any event, “ ‘[h]aving considered the facts and circumstances of this case,’ ” we reject defendant's contention that County Court abused its discretion in denying him youthful offender status ( People v. Guppy, 92 A.D.3d 1243, 1243, 937 N.Y.S.2d 921,lv. denied19 N.Y.3d 961, 950 N.Y.S.2d 113, 973 N.E.2d 211;see People v. Potter, 13 A.D.3d 1191, 1191, 786 N.Y.S.2d 793,lv. denied4 N.Y.3d 889, 798 N.Y.S.2d 735, 831 N.E.2d 980;see generally CPL 720.20[1][a] ), and we decline to exercise our interest of justice jurisdiction to adjudicate defendant a youthful offender ( see generally People v. Shrubsall, 167 A.D.2d 929, 930–931, 562 N.Y.S.2d 290). Finally, the valid appeal waiver forecloses any challenge by defendant to the severity of the sentence ( see Lopez, 6 N.Y.3d at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145;cf. People v. Adams, 94 A.D.3d 1428, 1429, 942 N.Y.S.2d 833,lv. denied19 N.Y.3d 970, 950 N.Y.S.2d 353, 973 N.E.2d 763;see generally People v. Lococo, 92 N.Y.2d 825, 827, 677 N.Y.S.2d 57, 699 N.E.2d 416;People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.